There are those who call for a new Nuremberg. The need to put Tsar Vladimir Putin on trial is being claimed by many . A need that has become even more pressing following the massacres perpetrated by Russian troops in the city of Bucha. But trying the president of the Russian Federation is not an easy thing: the path of law is long and tortuous. In the chaos, the president emeritus of the Constitutional Court Giovanni Maria Flick outlines a path that is not easily traversable. Professor, let’s put some order. What would be the institution that could put Putin on trial
In 1998, through the Treaty of Rome (ratified in 1999), the International Criminal Court was established. That is, the judicial body that does not deal with disputes between states, as the International Court of Justice does, which is always based in The Hague, but pursues individuals who have committed particularly serious crimes. The treaty, moreover, establishes which are the areas in which the Court is competent. However, it is important that finally we have begun to talk about crimes and defendants (natural persons) and not only about disputes between states, which is a more abstract concept. It is also important that the discipline of the trial and the identification of those crimes was done in general terms and before they were committed.The International Criminal Court on what kind of crimes intervenes
Genocide, crimes against humanity, committed against civilian populations and all inhuman acts. War crimes, in violation of the rules governing armed conflicts (eg the use of biological weapons, cluster bombs, rape and chemical and nuclear weapons). The latter is the crime of aggression, defined in 2010. The latter crime cannot be considered in the case of the invasion of Ukraine. Because it did not participate in the signing of the agreement. However, in 2014 and 2015, Ukraine signed an act accepting the jurisdiction of the International Criminal Court and a commitment to cooperate with it. Thus legitimizing its jurisdiction over the crimes committed on Ukrainian territory.There remain genocide, war crimes and crimes against humanity.
I must say that genocide is difficult to prove. The roads are instead open to verify the existence of war crimes and crimes against humanity. Technically, how could the intervention of the Court be requested
There are several possibilities. The first, albeit unlikely in this case, is that an express request be made by the United Nations Security Council. But, I repeat, at this juncture it is an almost impossible hypothesis: Russia is a permanent member of the Council, in which it exercises the right of veto. Therefore, the other way is that of the initiative of the prosecutor of the International Tribunal. The Court has supplementary competence: it acts only in the event that the justice of the country in which any crimes are being perpetrated is not in a position to exercise its function. At that point, if the prosecutor of the Court verifies the existence of crimes, he can ask the Court to open an investigation.As happens in our legal system, precautionary measures can be adopted
Certainly, by the Court in a preliminary settlement and at the request of the prosecutor. However, since the Court does not have a police force, for it to be effective, the suspect must be arrested in one of the states that have signed the Convention and over which the Court has jurisdiction. Also because, a possible trial can be celebrated only in the presence of the accused. To those who want a new Nuremberg for Putin, as they respond
From a purely legal point of view, they are different plans. In fact, in Nuremberg, a court was established after the facts, applying retroactive laws that reflected generally shared and valid principles of international criminal law. In Putin’s case, on the other hand, a Court already exists and the crimes he deals with are defined in advance and with reference to general cases and not with reference to a specific situation such as that of Nuremberg. This strengthens, on the legal level, the legitimacy of the eventual process, but it does not simplify the very problematic conditions for actually arriving to celebrate it.
